' MUHAMMAD MUNIR KHAN, *J.-These Criminal Appeals Nos.224/1993 and 225/1993 by leave of the Court filed by Ghulam Ullah against his conviction and sentence and by Muhammad Rafiq against acquittal of Iftikhar Ahmed respectively, arise from the judgment dated 13-9-1992 passed by Lahore High Court, Lahore, in Murder Reference No,128/90 and connected Criminal Appeal No,410 of 1990. We propose to dispose of both these appeals through this judgment.
2. In the occurrence which took place on 18-7-1988 at 11-30 a.m. In Main Bazar, Basti Chiragh Shah at a distance of 3/4 furlongs from Police Station 'B' Division, District Kasur, Ghulam Ullah and Iftikhar Ahmed armed with daggers, at the instance of and in consultation with acquitted accused Javed Shahid and Inamullah, caused the instantaneous death of Tariq Mehmood by inflicting injuries on his person with daggers in the presence of Shaman P.W.6, Muhammad Rafiq P.W.7, Din Muhammad P.W.8 and Mubarak Ali (not produced). F.I.R. Exh.PA/1 was registered on the same day at 12.05 noon by Ghulam Hussain Moharrir/HC P.W.1 on the basis of statement Exh. PA of Muhammad Rafiq P.W.7 uncle of the deceased, recorded by Muhammad Sharif S.-I. P.W.14, in Main Bazar, Kot Murad Khan, Kasur.
3. Motive allegedly, as per F.I.R. Was that two months before the occurrence, Javed Shahid and In mullah co-accused attacked and injured Feroze Din father of complain a Wand Nazir Ahmed and Dildar Ahmed brothers of complainant and a case, as registered against them. On the instigation of In mullah who is a police official, the appellants attacked and killed Tariq Mehmood deceased.
At the trial stage an additional motive was introduced/narrated byte prosecution. Shaman P.W.6 stated that In mullah and Javed Shahid accused ,:./ere friends; that Tariq Mehmood was engaged with the sister of Javed Shahid which was subsequently broken, and on a previous occasion there had been a quarrel between them.
4. Dr. Muhammad Hussain P.W.12 found as many as 24 injuries on the dead body of Tariq Mehmood out of which 7 were abrasions and others were either stabbed wounds or incised wounds, caused by sharp-edged weapon. Injury No,6 (stabbed wound) above the nipple, injuries Nos.10, 16 and 17 (stabbed wounds) on right thigh were found as sufficient to cause death in the ordinary course of nature.
5. Ghulam Ullah and Iftikhar Ahmed accused were arrested on 19-7-1988 by Muhammad Sharif S.-I.
P.W.14. On . 26-7-1988, Ghulam Ullah got recovered blood-stained {{URDU TEXT}}and Iftikhar Ahmed, on the same day, got recovered blood-stained double-edged dagger {{URDU TEXT}} from a graveyard, which were taken into possession by Muhammad Sharif S.-I. P.W.14 in the presence of Nazir Ahmed A.S.-I. P.W.15 and Jaffar Hussain P.W. (not produced). The report of the Serologist Exh.
PM revealed that the dagger and Chhurri aforementioned were stained with human blood.
6. To prove its case prosecution examined 16 witnesses in all. Shaman P.W.6, Muhammad Rafique P.W.7 and Din Muhammad P.W.8 claimed to have seen Ghulam Ullah and Iftikhar Ahmed accused inflicting injuries with their weapons on the person of Tariq Mehinood deceased, who, as a result of the injuries fell down and died on the spot. Nazir Ahmed P.W.15 and Muhammad Sharif S.-I. P.W.14 have supported the recovery of blood-stained daggers made on the potation of Ghulam Ullah and Iftikhar Ahmed accused. The report of Serologist Exh. PM shows that the aforesaid weapons were stained with human blood. Dr. Muhammad Hussain P.W.12 has proved the post-mortem examination report. The rest of the evidence is more or less a formal nature.
7. When examined under section 342, Cr.P.C., Iftikhar Ahmed denied his participation and presence at the time of occurrence. He raised plea of false implication on account of his friendship with In mullah accused. Ghulam Ullah, while admitting to have caused the injuries to the deceased with a Chhuri which he had snatched from the deceased, raised the plea of self-defense of person. He stated that the deceased grappled with him and picked up Chhurri from the shop of butcher and launched an attack on him. So, in order to save himself, he caused injuries on the person of the deceased after snatching Chhurri from him The accused neither produced any witness in defense nor made statement on oath in disproof of charge against them. In mullah, however, tendered copy of F.I.R. Exh. DH in his defense.
8. The trial Court disbelieved the motive alleged by the prosecution. Believing the ocular evidence and the incriminating recoveries from the accused and disbelieving the plea of self-defense raised by Ghulam Ullah accused, the trial Court convicted them under section 302/34, P.P.C. And sentenced them to death and a fine of Rs,50,000 each or in default one year R.I. Each. It was directed that half of the fine, if recovered, be paid to the legal heirs of the deceased. The trial Court acquitted Inamullah and Javed Shahid of the charge of conspiracy to commit the murder of the deceased. Ghulam Ullah and Iftikhar Ahmed filed Criminal Appeal No,410 of 1990 against their conviction and sentence and the complainant filed Criminal Revision No,341 of 1990 against the acquittal of Javed Shahid and Inamullah. The High Court vide impugned judgment has acquitted Iftikhar Ahmed of the charge and dismissed the appeal of Ghulam Ullah confirming the death sentence awarded to him. The High Court has also dismissed Revision of complainant disbelieving the motive as alleged by the prosecution. Iftikhar Ahmed has been acquitted mainly on the ground that according to the medical opinion given by Dr. Muhammad Hussain the injuries found on the dead body could not have been inflicted by Khanjar P5 which is a spiral weapon and could have been inflicted by a double-edged weapon Exh. P.4. The relevant paragraph of the judgment of High Court may be reproduced advantageously:- "It was vehemently urged before us that only accused Ghulamullah had inflicted injuries on the deceased with the double-edged weapon Exh. P.4 recovered and taken into possession at his potation from the graveyard. Khanjar, spiral in shape, P.5 was taken into possession at the instance of Iftikhar Ahmed, accused/appellant by P.W. 14 Muhammad Sharif vide memo. Exh.PG attested by P.W. 15 Nazir Ahmad, A.S.-I and Faqir Hussain Constable. We have examined P.5 which is spiral in shape. P.W.12 Dr. Muhammad Hussain has stated that injuries with P.5 are least likely to be caused by this kind of weapon and he further explained that he did not think that any of the injuries to the deceased could be caused by a spiral weapon. The injuries were inflicted by double-edged weapon which is Exh.P.4. It is the duty of the Court to sift the chaff from the grain and as a principle of abundant caution, we accept the criminal appeal in respect of Iftikhar Ahmed, accused, and acquit him of the charge.
9. Feeling aggrieved thereby, Ghulam Ullah filed Criminal Petition Leave to Appeal No, 351-L of 1992 in which leave was granted to examine the i'' question of sentence only. Muhammad Rafiq challenged acquittal of Iftikhar Ahmed through Criminal Petition for Leave to Appeal No,354-L of 1992 in which leave was granted to examine the correctness of the reasons given by High Court for acquitting Iftikhar Ahmed.
10. Learned counsel for Ghulam Ullah accused/appellant has relied on Manzoor Ahmad v. The State (PLD 1983 SC 197) and Miran Bux and another v. Muhammad Amir and another (1986 SCM R 1225) to contend that there are mitigating circumstances in favor of the appellant/accused for lesser penalty, in that, the motive alleged by prosecution having not been established, the real cause of murder remains unknown.
' Learned counsel for Muhammad Rafiq appellant/complainant has argued that the High Court after believing the eye-witnesses and the incriminating recovery from Iftikhar Ahmed accused was not justified in acquitting him on the strength of opinion of the Doctor that the injuries found on the person of the deceased could not be inflicted by a weapon recovered from him. Learned counsel has further argued that according to the ocular evidence which has been believed by the Courts below, the respondent had caused injuries to the deceased with a dagger and the dagger/Cherri recovered from him was found stained with human blood, therefore, there was no justification to give preference to the medical opinion over the ocular evidence. It is also argued that the impugned judgment to the extent of acquittal of Iftikhar Ahmed is perverse and the reasons given therein are artificial and imaginary.
' Contrarily, learned counsel for Iftikhar Ahmed respondent has argued that Dr. Muhammad Hussain is an independent witness. There is no valid reason to discard or ignore the expert opinion given by him about the nature of the weapon with which the injuries found on the person of the deceased were inflicted and that the judgment of acquittal was neither perverse nor reasons given therein were artificial. He has further argued that once an accused person has been acquitted by the High Court, strong and exceptional ground would be required for interfering with the same which are not available in this case.
' Learned counsel appearing for the State has supported the impugned judgment.
11. We have anxiously attended to the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence on record and circumstances of the ca.. Taking the appeal against acquittal first, we find that Shaman P.W.6, Muhammad Rafique P.W.7 and Din Muhammad P.W.8 have been believed by the Courts below. On our independent assessment, we do not see any serious infirmity warranting rejection of their statements as a whole. They had no serious enmity against Ghulam Ullah and Iftikhar Ahmed accused to involve them falsely in the case. The statements given by them are in consonance with the probabilities and fit in with the other evidence and circumstances appearing in the case. They have consistently stated that Ghulam Ullah and Iftikhar Ahmed had caused injuries with their daggers in their presence to the deceased.
Nazir Ahmed P.W.15 and Muhammad Sharif S.-I. P.W.14 the recovery witnesses are also dependable witnesses. The statements made by them do not suffer from infirmities such as major contradictions, material discrepancies or dishonest improvements. They had no animous against the accused. They have been believed by the two Courts below.
' According to medical evidence, there were 17 injuries caused by sharp-edged weapon which were either stabbed wounds or incised wounds. The weapon recovered from Ghulam Ullah accused was{{URDU TEXT}}" and the weapon recovered from Iftikhar Ahmed was "{{URDU TEXT}} ". No doubt, Dr. Muhammad Hussain has stated that the injuries found on the dead body could not have been inflicted by Khanjar P5 recovered from Iftikhar Ahmed but he has not given any reasons therefor.
The two Courts below, as well as this Court is fully convinced that the eye-witnesses were present on the spot. They had seen the occurrence and their evidence is trustworthy and confidence inspiring. We are of the view that the incised and stabbed wounds found on the person of the deceased could be result of double-edged daggers Exhs. P4 and P5 recovered from Ghulam Ullah and Iftikhar Ahmed. It is by now well-settled that when the Court is convinced that a witness had seen the occurrence and is worthy of credence, then conflicting opinion of doctor would not detract from its evidentiary value of eyewitnesses. Having believed the eye-witnesses and the recovery of dagger P.5 stained with human blood from Iftikhar Ahmed, the High Court was not legally justified in rejecting ocular evidence qua him on the strength of medical opinion.
' The recovery of dagger P.5 from Iftikhar Ahmed has also been believed by the two Courts below.
We do not, therefore, see any valid reason to differ with them. In this view of the matter there can be no two opinions that the conclusion recorded by the High Court is such that no reasonable person would conceivably reach the same and the judgment of acquittal is perverse as the reasons therefor are artificial and imaginary. We feel that interference by this Court in this case to avoid grave miscarriage of justice is very much essential. Consequently, Criminal Appeal No,225 of 1993 filed by the complainant against acquittal of Iftikhar Ahmed accused is accepted and the impugned judgment is set aside and his conviction under section 302/34, P.P.C. Recorded by the Trial Court is restored, but the sentence, for reasons to be given hereafter, is altered from death to life imprisonment.
12. As regards Criminal Appeal No,224 of 1993, leave had been granted on the question of sentence only. We have considered the question of sentence of Ghulam Ullah and Iftikhar Ahmed accused with utmost care on our part as there is a wide difference between the two alternative sentences provided under section 302, P.P.C. The motive has been disbelieved by the Courts below. The two co-accused namely In mullah and Javed Shahid at whose instance and instigation the appellant had allegedly killed the deceased have been acquitted. At trial stage attempt at improvement of motive was also made, so the real cause of murder of the deceased remains unknown. Hence, mitigating circumstances for lesser penalty in favor of both accused are available. Resultantly, Criminal Appeal No,224 of 1993 filed by Ghulam Ullah against his conviction is dismissed but his sentence of death is altered to imprisonment for life.
' Sentence of fine of Rs,50,000 or one year R.I. Each, in default of payment of fine, and direction with regard to payment of Rs,25,000 each to the legal heirs of the deceased, as ordered by the Trial Court is maintained, in respect of both Ghulam Ullah and Iftikhar Ahmed. Benefit of provisions of section 382-B, Cr.P.C. Is extended to them.
13. Iftikhar Ahmed is reportedly confined in jail. Copy of this judgment may be sent to the Superintendent Jail concerned for information and necessary action.